42237/15

FIFTH SECTION CASE OF SHOVKALYUK v. UKRAINE (Application no. 42237/15)             JUDGMENT   STRASBOURG 10 June 2021   This judgment is final but it may be subject to editorial revision. In the case of Shovkalyuk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Stéphanie Mourou-Vikström, President,  Jovan Ilievski,  Mattias Guyomar, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 20 May 2021, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 August 2015. 2.  The applicant was represented by Mr O.V. Gurich, a lawyer practising in Kyiv. 3.  The Ukrainian Government (“the Government”) were given notice of the application. THE FACTS 4.  The applicant’s details and information relevant to the application are set out in the appended table. 5.  The applicant complained of the unlawful detention. He also raised other complaints under the provisions of the Convention. THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 1 of the Convention 6.  The applicant complained principally of the unlawful detention. He relied on Article 5 § 1 of the Convention, which reads as follows: Article 5 § 1 “1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;” 7.  The Court reiterates that Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual, and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts), with further references). 8.  Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see S., V. and A. v. Denmark [GC], nos. 35553/12, 36678/12 and 36711/12, § 74, 22 October 2018, with further references). 9.  In the leading case of Ruslan Yakovenko v. Ukraine (no. 5425/11, §§ 68-70, 4 June 2015) the Court found a violation in respect of issues similar to those in the present case (see the appended table). 10.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s detention was not in accordance with Article 5 § 1 of the Convention. 11.  It follows that the applicant’s complaint is admissible and discloses a violation of Article 5 § 1 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12.  The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Kharchenko v. Ukraine (no. 40107/02, 10 February 2011) and Ignatov v. Ukraine (no. 40583/15, 15 December 2016). REMAINING COMPLAINTS 13.  The applicant also raised other complaints under various Articles of the Convention. 14.  The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. 15.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.  Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 17.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Malyk v. Ukraine, no. 37198/10, 29 January 2015), the Court considers it reasonable to award the sum indicated in the appended table and rejects any additional claims for just satisfaction raised by the applicant. 18.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaints concerning the unlawful detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of the application inadmissible; Holds that these complaints disclose a breach of Article 5 § 1 of the Convention concerning the unlawful detention; Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); Holds (a)  that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 10 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Stéphanie Mourou-Vikström Acting Deputy Registrar President   APPENDIX Application raising complaints under Article 5 § 1 of the Convention (unlawful detention) Application no. Date of introduction Applicant’s name Year of birth Period of unlawful detention Specific defects Relevant domestic decision Other complaints under  well-established case-law Amount awarded for pecuniary and non-pecuniary damage per applicant (in euros)[1] 42237/15 21/08/2015 Vyacheslav Stepanovych SHOVKALYUK from 27/02/2015 to 02/03/2015 delayed release (Ruslan Yakovenko v. Ukraine, no. 5425/11, §§ 68-70, ECHR 2015) none Art. 5 (4) - excessive length of judicial review of detention - the applicant’s appeal against the detention order of 19/11/2014, lodged on 24/11/2014, was only considered on 13/01/2015, with the period of examination running for 1 month and 20 days, which cannot be considered reasonable. 2,340   [1] Plus any tax that may be chargeable to the applicant.